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Understanding Your Rights: Bail, Booking, and Over-Booking

The judge has discretion over bail, but what happens before you see the judge? How is bail determined before you go to court? Is the bail likely to increase, decrease, or stay the same when it does go to court?

If you were arrested, you need to understand the fundamentals of bail, booking, and concept of being over-booked. The more you know, the more money you may be able to save on bail. Below, our firm discusses the bail process, the common injustice of over-booking in regards to bail, and how a lawyer can possibly get bail reduced to save you money.

The Basics

After an arrest is made, for certain crimes, a person may not be released from jail pending trial unless money bail is paid to the court. The amount of bail required varies on a case-by-case basis, but the process of determining bail in every case remains the same.

The booking process is when, after the arrest, the officer at the jail enters into the system what crimes you were arrested for, i.e. what crimes he or she believes you to have committed. As you can read more about here, these allegations you are booked for do not necessarily reflect the charges that will actually be filed, as police do not make that determination.

Bail Schedules

Most counties have bail schedules. For example, the Alameda County Bail schedules can be found on the Court of Alameda’s website. The bail schedule instructs the jail how much bail to demand based on the charges under which the person was booked.

For instance, per the Alameda County bail schedule, felony domestic violence has a bail of $50,000. Thus, if you were arrested for felony domestic violence in Alameda County, you can expect bail to be set at $50,000 before you go to court and see the judge.

In this way, neither the jail nor the police have discretion over bail in the same way that courts do.

When a Judge Determines Bail

Once the case is before the judge, the judge can raise or lower the bail based on the arguments made by counsel. For instance, the DA may argue bail should be increased above schedule based on the defendant’s history of failures to appear, history of criminal acts, lack of ties to the community, or particular egregiousness of his or her case.

Similarly, the defendant’s attorney can argue that bail should be reduced based on the defendant’s lack of failures to appear, nonexistent criminal history (or perhaps only very little or very old criminal history), significant ties to the community, difference between the charges at booking compared to the charges actually filed, or because the nature of the case as alleged is relatively minor or mild compared to most other cases which allege the same type of violation.

Let Our Firm Help You

In 2018, our criminal defense attorneys at the Law Office of Ivan O.B. Morse made similar arguments before the court resulting in our client’s bail being reduced from $200,000 to $45,000. In another case, comparable arguments resulted in bail being reduced from $110,000 to O.R. (meaning $0).

How Police Exercise Discretion Over Bail

Although the judge gets the final say regarding bail, for several days before the case goes to court, it is the police who have inordinate control over the amount of bail. Although bound by the bail schedule, police decide which charges, and how many, to book an individual under (again, these are not necessarily the charges that will actually be filed). It is not uncommon for police to book heavy-handedly by booking people under every duplicative and farfetched theory of the crime they can imagine. This “over-booking” can make the bail unfairly high, at least until the case goes to court.

For example, in a case where a man was accused of resisting arrest, eight police officers allegedly participated in trying to subdue him. When he was booked, he was booked under eight counts of resisting arrest, with $20,000 bail for each of them, totaling $160,000. When he appeared in court, days later, the prosecutor charged him (more fairly) with only one count of resisting arrest, and the judge therefore lowered the bail respectively to $20,000 total.

In another case, a man was booked under two counts of felony robbery, one count felony domestic violence, and one count of misdemeanor vandalism, for a total of $150,000 bail. When he went to court, the prosecutor had charged the man with only misdemeanor vandalism, believing the facts as alleged in the report did not constitute a robbery or a battery. The man was given O.R. (bail reduced to $0) by the judge in court.

Knowing Your Rights

Why does this matter? It matters because if you contract with a bail bond company, the price you pay them is based on the amount of the bail (usually 10%), and if that bail later goes down, the bond company is not likely going to refund you the difference. That is to say, in the last example, the man would have saved $15,000 of his own real money if he stayed in jail a few days until his court date without bailing out. Of course, jail is awful, and he didn’t know that, and there was also no guarantee bail would not simply remain $150,000 after going to court.

Another way in which the practice of over-booking can affect an individual, is it can extend the amount of time the person has to wait to be eligible to have their arrest record sealed. If a police officer decides, in his or her discretion, to book a suspect under a felony domestic violence charge, rather than of a misdemeanor domestic violence charge, the one-year waiting period to seal the arrest record would be extended to three years.

Finally, the charges you are booked for may remain on your arrest record history forever, even if that charge is never filed. Say, for example, a person is arrested on suspicion of DUI and Driving on a Suspended License. After the arrest, their blood is drawn and shipped to the lab for testing. If that driver’s blood comes back clean, and the DA therefore charges the individual only with Driving on a Suspended License, the arrest record will still continue to reflect Driving on a Suspended License and DUI, despite the DUI charge never being filed.

In the above situation, our firm could actually bring a Petition under Penal Code section 851.8 which, if successful, would remove the DUI information from the arrest record. A petition under P.C. 851.8 must be brought within two years of the arrest.

If your loved one is in custody with a high bail, you could perhaps save thousands of dollars by retaining our firm to argue for a bail reduction in court before bailing them out.

Additionally, if your arrest record needs fixing because you were over-booked on charges that were never filed, as discussed, we can assist with that as well.

Contact the Law Office of Ivan O.B. Morse for a free consultation today.